if you are a believer, then you are a terrorist

IF YOU ARE A BELIEVER, THEN YOU ARE A TERRORIST

Analysis of violation of law at the trial of the Azerbaijan citizens accused of terrorist offences

 

Baku Court of Appeal

Case №1(103)-1112/2021

9 August 2021

Presiding judge: Ilqar Murguzov

Judges: Habil Mammadov, Hasan Ahmadov

Defendants: Samir Qurbanov, Amin Hasanov, Aflatun Bayramov, Babak Mammadli, Tehran Qasimov, Elgun Ismayilov, Aladdin Ibishev, Yusif Imanov, Orkhan Qurbanov, Shahriyar Jabbarov, Javid Amanov

Defenders: Babak Hamidov, Elchin Sadiqov, Eynulla Valiyev, Sudaba Aliyeva, Vali Valiyev, Azer Naqiyev 

The Public Prosecutor: Emil Mirzoyev, a prosecutor of the Support Public Prosecution Department at the Courts of Appeal under the Azerbaijan Republic Prosecutor General’s Office

 

A citizen of the Azerbaijan Republic, born in 1988 in the Qazakh district of Azerbaijan, Samir Qurbanov, previously not convicted, against whom a preventive measure of custody had been imposed as of 9 May 2019, was arrested on charges of committing offences under the following Articles of the Criminal Code of the Azerbaijan Republic:

  • 167-2.2.1 (Production, import with the purpose of sale or distribution, sale or distribution of literature, religious objects and other informational materials of religious content without relevant permission, committed by a group of persons upon a preliminary conspiracy or by an organized group);
  • 167-2.2.2 (Production, import with the purpose of sale or distribution, sale or distribution of literature, religious objects and other informational materials of religious content without relevant permission, committed more than once);
  • 167-3.1 (Manufacture, storage or distribution of religious extremist materials, i.e. materials calling for the implementation of religious extremist activities or justifying such activity, either justifying the need for such activities);
  • 28,214.2.1 (Preparation for terrorism committed by an organized criminal group);
  • 28, 214.2.6 (Preparation of terrorism committed on the base of religious enmity, religious radicalism or religious fanaticism);
  • 214-1 (Financing of terrorism);
  • 218-1 (Creation of criminal community (criminal organization) for commitment minor serious or serious crimes);
  • 283-1.1 (Involvement of citizens of the Republic of Azerbaijan or stateless persons permanently residing in the Republic of Azerbaijan, to armed conflicts outside the Republic of Azerbaijan with a purpose to disseminate religious teachings, under the pretence of performing religious rites, or due to religious animosity, religious radicalism and religious fanaticism or conducting military exercises for this purpose, or creation of stable group for this purpose and management of such group).
  1. Qurbanov was arrested on 9 May 2019. He is currently being held in the Baku Detention Centre of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May, 2021, the Baku Court of Serious Crimes found S. Qurbanov guilty on the charges and sentenced him to 8 years’ imprisonment in a strict regime colony.

Amin Hasanov, born in 1993 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-2.2.1, 167-2.2.2, 167-3.1, 28,214.2.1, 28,214.2.6, 214-1 and 218.2 (Participation in criminal community (criminal organization) or in association of organizers, heads or other representatives of the organized groups) of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found A. Hasanov guilty on the charges and sentenced him to 7 years’ imprisonment in a strict regime colony.

Aflatun Bayramov, born in 1993 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 28,214.2.1, 28,214.2.6, 218.2, 28, 283-1.3 and 228.4 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found A. Bayramov guilty on the charges and sentenced him to 7 years’ imprisonment in a strict regime colony.

Babak Mammadli, born in 1980 in Fuzuli City of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 214-1 and 218.2 (Participation in criminal community (criminal organization) or in association of organizers, heads or other representatives of the organized groups) of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found B. Mammadli guilty on the charges and sentenced him to 7 years’ imprisonment in a strict regime colony.

Tehran Qasimov, born in 1991 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-2.2.1, 167-2.2.2, 167-3.1, 214.1 and 218.2 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found T. Qasimov guilty on the charges and sentenced him to 5 years’ imprisonment in a strict regime colony.

Elgun Ismayilov, born in 1995 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 8 June 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 218.2 and 28,283-1.3 (Involvement of citizens of the Republic of Azerbaijan or stateless persons permanently residing in the Republic of Azerbaijan, to armed conflicts outside the Republic of Azerbaijan with a purpose to disseminate religious teachings, under the pretence of performing religious rites, or due to religious animosity, religious radicalism and religious fanaticism or conducting military exercises for this purpose, or creation of stable group for this purpose and management of such group) of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found E. Ismayilov guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

Aladdin Ibishev, born in 1993 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 16 September 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 218.2 and 28,283-1.3 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found A. Ibishev guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

Yusif Imanov, born in 1985 in the Nakhchivan Autonomous Republic of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 10 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1 and 218.2 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found Y. Imanov guilty on the charges and sentenced him to 2 years imprisonment in a strict regime colony.

Orkhan Qurbanov, born in 1987 in Baku City, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1 and 218.2 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found O. Qurbanov guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

Shahriyar Jabbarov, born in 1996 in the Khanlar district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 20 August 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 218.2 and 218-1.3 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found Sh. Jabbarov guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

Javad Amanov, born in 1977 in Ali-Bayramly City (today – Shirvan City) of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 7 June 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 214-1 and 218.2 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found J. Amanov guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

According to the investigation and the first instance court verdict, Samir Qurbanov had set up a criminal network of the Azerbaijani citizens in order to commit serious and extremely serious acts of crime. S. Qurbanov was the leader of the community and engaged its members into the armed conflicts on the grounds of religious enmity, religious radicalism and fanaticism outside the Azerbaijan Republic. The following individuals joined and were members of the network: Babek Mammadli nicknamed “Abdul Rahman”, Amin Hasanov nicknamed “Bilal”, Tehran Qasymov nicknamed “Abdullah”, Aflatun Bayramov nicknamed “Abu Bakr”, Elgun Ismayilov nicknamed “Khamza”, Orhan Qurbanov, Shahriyar Jabbarov, Aladdin Ibishev, Yusif Imanov, and others. The objective of the network was to compromise public security, cause panic among the population, as well as killing and inflicting harm to health, damaging vital facilities by blowing up, setting fires and other criminal activities. However, due to unknown reasons, they were unable to finalise those crimes, although they had carried out the preparations. The charge also stated that the criminal network had raised funds for the financing of terrorism, distributed and stored the banned religious literature, audio and video materials appealing for the implementation of religious extremism. The indictment and conviction of the Court of First Instance stated that in February-March 2017, Samir Qurbanov by the religious nickname “Musab” had received the assignment from a member of the prohibited Syrian organisation ISIS that was declared a terrorist organisation by the UN in 2014. The identity of this ISIS member was revealed by the investigation. The investigators believe that the communication between the network members was maintained via a hidden correspondence by means of the “Threema ID” mobile app. In 2019, the network members were instructed by an ISIS member nicknamed “Abdul Ghafoor” to commit suicide bombing at the public crowded place on the territory of the Russian Federation. However, they subsequently refused to proceed, having tentatively informed Samir Qurbanov.

On 9 May, 2019, the Azerbaijan Republic State Security Service officers conducted a search in Samir Qurbanov’s house in Tovuz, as a result of which they found the books, audio and video materials containing the prohibited religious content, also, they discovered a notebook containing the written records of  their expenses and a Samsung cell phone. All items were seized. The same day, a search was conducted in Aflatun Bayramov’s house in Tovuz, where they found an “Elfmon-Key” knife considered to be a cold weapon, as well as a Samsung mobile phone. A search of Yusif Imanov’s car, held on 10 May, 2019, led to the discovery and confiscation of electronic carriers containing the banned religious content. The other defendants’ homes were also searched and the electronic devices containing the banned religious materials were confiscated.

Samir Qurbanov, who was interrogated in the course of the investigation and at the trial pleaded not guilty to the charges and testified that he had moved to Turkey on 15 April 2016, where he got a job in the laundry. On 15 June 2016, there was an attempted coup d’état in Turkey. Many people gathered at the town squares. He was also curious about it and periodically wandered around the square. In October 2016, S. Qurbanov was deported to Azerbaijan. Then he returned to Tovuz where he was engaged in the private retail business. Soon, Samir Qurbanov met Babek Mammadli, Tehran Qasymov, Amin Hasanov, and others.

Back in 2012, those people formed a group aimed at collecting money and helping the people in need (”sadaqa” in Islam). Since Qurbanov lived in the centre of Tovuz and was able to solve problems in a timely manner, he was elected as their leader. Their meetings mainly took place at the teahouses or in the parks. S. Qurbanov testified that the funds had not been collected to finance terrorism, as indicated in the accusation but as sadaqa, an assistance to those in need. He refuted the argument that Amin Hasanov had rented a flat to hold there secret meetings with the purpose of committing crimes. A. Hasanov had been residing in that flat and, due to his back problems, he was unable to work. In addition, A. Hasanov had three minor children to support, so he was allocated 90, 99 or 100 manats as an aid from the collected money. Also, Amin Hasanov ran classes on the Quran and the life of the prophets in his house.

In 2017, Abdul Ghafoor asked Tehran Qasymov to lend him money for his personal needs, as well as for the treatment of his child. He was given $400 and $900. S. Qurbanov testified that he had known Babek Mammadli for about 15 years, he did not have any religious nickname, the others he had known only as individuals performing religious rituals. He had known Tehran Qasymov since 2011. S. Qurbanov taught him Arabic and Quran but did not give him any instructions. He did not have any connections with people from Syria and Afghanistan. Qurbanov testified that he had not transferred any religious literature to the accused Elgun Ismayilov and Yusif Imanov by means of Teleqram system, neither he had provided testimony concerning Babek Mammadli to the investigation, nor about Yusif Imanov being a member of the criminal group nor about his attitude to ISIS. He had not previously met Javid Amanov and saw him for the first time in the courtroom. S. Qurbanov testified that he had been detained by the State Security Service in his house in Tovuz and he had not been beaten but had been subjected to psychological pressure. His lawyer was not in attendance at the first interrogation, while during the last interrogation there was another lawyer, Chimnaz Eyubova.

The verdict of the first instance court stated that the accused Babek Mammadli had refused to testify at the trial. However, he denied that fact in his appeal.

The other defendants, Amin Hasanov, Aflatun Bayramov, Tehran Qasymov, Yusif Imanov, Orkhan Qurbanov, Elgun Ismayilov, Shahriyar Jabbarov, Aladdin Ibishev and Javid Amanov, as stated in the first instance court verdict, also made partial confessions at the pre-trial investigation stage.

Afsun Qalandarli, Rafayil Jafarov, Nizami Mammadov, Shahmar Salimov, Elchin Jafarov, Adil Ahmadov, Qabil Qasymov, Alisurat Aliyev, Rahil Nasirli, Vusal Abbasov, Tural Abdiyev, Ramin Hajiyev, Hasan Ahmadov, Aladdin Mehdiyev and Samir Aliyev were interrogated as witnesses at the first instance court. The witness Rafayil Jafarov testified in favour of the accused at the trial of the first instance. Their testimonies differed from the ones provided in the course of the pre-trial investigation. He explained the contradiction by the fact that he had signed the protocol of interrogation without reading it. The same happened with the testimonies of Nizami Mammadov, Elchin Jafarov, Qabil Qasymov, Alisurat Aliyev and Rahil Nasirli.

According to the search protocols, there were found the religious materials (books, audio and video) in the possession of the accused. Distribution of these materials requires permission issued by the State Committee on Religious Structures of the Azerbaijan Republic.

The forensic psychiatric examinations conducted on 19 June, 2019, revealed that all the accused individuals had been in their sane state at the time of the offences, and had not suffered from any psychiatric or psychological disorders.

The Baku Court of Appeal concluded that the first-instance court had issued the correct verdict by declaring the defendants guilty of the charges.

The Baku Court of Appeal also considered that the defendants’ testimonies provided at the first instance court had been of a defensive nature, had not been supported by any other evidence, and had been intended to avoid the criminal charges.

The first instance court determined that committing the offences as part of an organised criminal group and on the grounds of religious fanaticism had been considered to be aggravating circumstances. The Court regarded Babek Mammadli’s, Javid Amanov’s and Orkhan Qurbanov’s minor children as mitigating circumstances. Also, the Court found the fact that Tehran Qasymov, Aladdin Ibishev and Aflatun Bayramov active assistance to the investigation in the detection of the crimes and identification of other participants of the crime group as mitigating circumstances. According to the verdict of the first instance court, the aggravating circumstances were that Aflatun Bayramov had committed criminal offences as part of the organised criminal group and on the grounds of religious fanaticism, and as his particularly dangerous recidivism.

On 9 August, 2021, the Criminal Panel of the Baku Court of Appeal issued a ruling on the appeals lodged:

  • dismiss the appeals lodged by the defendants Amin Hasanov, Aflatun Bayramov, Tehran Qasymov, Elgun Ismayilov, Aladdin Ibishev and also Samir Qurbanov’s lawyer Babek Hamidov, Babek Mammadli’s lawyer Azer Naqiyev, Tehran Qasymov’s lawyer Eynulla Valiyev, Amin Hasanov’s, Aflatun Bayramov’s and Babek Mammadli’s lawyer Elchin Sadigov;
  • uphold the sentence of the Baku Court of Serious Crimes issued on 4 May 2021.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 46.3 of the Code of Criminal Procedure of the Azerbaijan Republic,

The grounds for starting criminal proceedings shall be sufficient evidence to indicate the ingredients of the offence. If there are grounds to suppose that there are no circumstances indicating the absence of a criminal act or precluding criminal prosecution, the preliminary investigator, investigator or prosecutor shall immediately start the criminal proceedings in accordance with his powers.

Thus, it is necessary to have sufficient elements of evidence that clearly indicate that an individual has been or is about to be involved in the commission of a crime.

In this case, the accused were charged with aggravating circumstances and the trial court verdict and the appeal court ruling did not adequately prove the guilt of the individuals brought before the court. As evidence, the investigation found the books, videos and audio materials confiscated at the defendants’ homes, which had been assessed as illegal. However, there is no indication in the Court of Appeal ruling (nor in the first instance verdict) that it was an expertise of any kind stating that the found materials had been banned. It only points out that there was no authorization from the Azerbaijan State Committee for Religious Structures to store and distribute those materials. The judgment and ruling also fail to specify the titles of the seized books and the content of the video and audio recordings.

It is necessary to draw attention to the witnesses’ testimonies in the case in question. As stated above, the Court relied on the testimonies provided by witnesses during the pre-trial investigation and not on those in the course of the trial. It should be noted that the testimonies at the investigation were of an accusatory nature and the testimonies at the trial were of a defensive nature. There was not anything that could partially prove the defendants’ guilt. All those witnesses testified that they had signed their statements at the investigation without reading them. Therefore, all of them could not have conspired with each other in advance to testify similarly in the court. It means that most likely the witnesses were subjected to psychological coercion in the course of the investigation, as it often happens. It is unclear the Court’s position with regard to the witnesses’ testimonies. The Court explains that they consider the testimonies provided in the course of investigation more appropriate because they are corroborated with other evidences obtained in the case. However, what kind of evidence it is, whether it is irrefutable and what particular circumstance it confirms, it is equally unclear.

The first-instance verdict, as well as the judgment of the Court of Appeal, only indicated the prosecution position; the verdict and judgment were in fact copied word by word from the indictment. Whereas the arguments, proofs and reasoning of the defence had not only been omitted but failed to be assessed as a whole.

Furthermore, in addition to procedural violations, there were violations of substantive law. As indicated above, the six defendants were charged with the financing of terrorism and preparation for terrorism. The charges on those Articles are sufficiently severe and require a very strong evidentiary basis. It should be emphasized that the amounts set out in the indictment, and later in the first instance verdict and appeal court ruling, are so insignificant that to suggest that terrorism was financed with those amounts is simply illogical and ridiculous.

One of the important points in the case are the charges with aggravating circumstances, e.g. crimes committed as part of an organized criminal group (criminal network). As the defendants testified, many of them did not know each other at all, they had just met for the first time in the courtroom. Others knew each other but their cooperation in organizing serious crimes was not proven in the court. The charge with this aggravating circumstances was half-hearted and unproven.

The investigation indicated that secret software such as “Threema İD” was found in the accused ones’ mobile phones, but almost all of them had not been aware of the existence of such software and had never used it. That was confirmed with a forensic report.

It is also puzzling how, during the first instance trial, the court ordered the compulsory attendance of a number of witnesses but, having not waited for that order to be enforced, the investigation was terminated and the court proceeded with making oral arguments.

It is also important to consider the question of the motions filed by the defence. There are certificates in the criminal case file lacking a source. The defence requested the court to establish the source of those documents. However, as usual, the motions were declined.

According to the Article 121.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

Reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected.

As can be deduced from the above, there were serious violations of substantive and procedural law in the course of the investigation and in the courts of two instances.

Partiality, bias of the court violated the right to a fair trial guaranteed by the Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to this article, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The court violated the principle of a fair trial by an independent and impartial tribunal.

The trials conducted by the two courts were not fair and impartial. The courts, having accepted the version of the preliminary investigation, issued the rulings that contradicted the Norms of National and International law.

The judgment of the European Court of Human Rights (ECHR) in Castillo Algar v Spain of 28 October 1998 states:

Under the objective test, it must be determined whether, irrespective of the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public, including the accused. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. In deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified. –

https://hudoc.echr.coe.int/eng#{“fulltext”:[“\”CASE%20OF%20CASTILLO%20ALGAR%20v.%20SPAIN\””],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58256”]}

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 1, specifies that the rights and freedoms protected by the Convention are to be fully enforced as soon as a State ratifies it. It sets out the limits of the Convention in terms of the rights-holders, the object of protection, the limits and effectiveness of the jurisdiction exercised by the State.

Violations of the procedural and substantive provisions were not investigated by the court, they were not legally assessed, the prejudicial treatment of the defendants, the failure to take into account strong defence evidence, the one-sided examination of the criminal case and the subsequent conviction resulted in a gross violation of the right to a fair trial, guaranteed by the domestic law and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as ECHR case-law.